THE Case and Argument against SIR Ignoramus OF CAMBRIDG BY ROBERT Calais Of grays-inn Esquire, Afterward sergeant at law, in his Reading at STAPLS-INN in LENT 14. Ia. R. LONDON Printed for Matthew Walbancke at Grays-inn Gate: Anno Dom. 1648. THE CASE MOnsieur Avidus in le droit de Madame Parcella sa feme fuit sesie del manor in Wrangle & Jars in Countee de Cumberland, a que l' advowson d' Eglise in L. fuit appt. il g●ant son manor in Wrangle & Jars cum pert. all Sir Simon Magus; le eglise devient voide Monsieur Avidus present. B tunc devient recusant convict & mort. sa feme present D, Sir Simon present E, le university de Cambridge presents Sir Ignor. le agard. Jure patronat, Levisque eslie le Jury trov● tout le matter avandit & que B. ad primer benefice, feme fuit schismatic, E, ad contract ove Sir Simon de further-son institution, Sir Ignoramus fuit egregie illiteratus, 6 mois pass, Roy present Do Apollo le Levisque eslie collate M. Grace son chaplain demesne a que le avoidance pertain. hac vice. Quere IN THE CASE Intentio Nominum, & Interpetatio eorum. 1. MOnsieur Avidus is the greedy griping patron who will not part with the Benefice, but with a Si quis plus dare voluerit. 2. Sir Simon Magus is the simoniacal patron▪ Nota, He is descended of no great Gentry, but ascended from a Kna. to a Kni. He lately made two purchases, the one of his Knighthood, the other of his advowson. 3. B. the clerk of Monsieur Avidus is noted for an engrossing Benificer, who though he had not passed one degree in the university, yet boldly enterprised to set upon two benefices in the Country, Audaces fortuna juvat. 4. The university of Cambridg are patrons by the law of 3. Jacobi, but bestowed the Benefice on a sot without, reason, Sapiunt generaliter, in●ipi●nt particulariter. 5. Sir Ignoramus intended for the universities Catacoustichon a general noted Coxcomb, a resemblance of the Actor which they bestowed on the inns of Court, Ignoramus. 5. The Evesque Eslie, in English, signifieth a Bishop Elect, but not sacred; I will say no more to but Nolo se ulterius tangere. 7. The Four presentations coming so near together, show to us that many clerks at some times ride post▪ for one Benefice, post for a Benefice. 8. The awarding of the Jure patronatus, presents unto us pretty device to set many Clarks together by the ears whilst a third person get it from them all. 9 Doctor Apollo's is a grave and learned Divine, the King's chaplain, to demonstrate, that though there be many Knaves and fools, yet there be some wise learned men also. 10. Master Grace is intended the flourishing ignorant favourite, who by his friend or his purse (and not for his desert in Learning) attaineth a Benefice: he is a resemblance of the Law-favourite, who for his Learning deserves rather to be an Auditor, than an ignorant Orator; Sed fortuna favet fatuis, Insomuch that he is a Preacher or Practiser of Fortune; the truth whereof is, that the decease of his friend is the end of his practice, Amicus Usque ad mortem: And of this Ignoramus, and Sir Ignoramus I motto thus: Pari jugo sociantur asini. 11. I Called the Woman Parcella, and set her out for a schismatic, to this end, because a certain woman (I will not name) but one professing to be a Brownist, took a Journey to Amsterdam; & after 2 years' stay she returned again with Child to her husband, which showeth though she be a weak vessel to graft Religion on, yet she is a strong stock to get a Religious child on, vera filia Matris. In all these, I only aimed at the iniquity of the time, and by their Names to demonstrate their qualities; I suppose that no Man or Woman can religiously find themselves grieved at me, If they do, I say no more to them, but Adsum qui dixi, In me convertite tela. THE CASE MOnsieur Avidus in the right of Parcella his wife was seized of a manor in wrangle and jars in the County of Cumberl: To the which the advowson of the Church of L. was appendent. He granteth his manor in wrangle and jars Cum Pert. to Sir Simon Magus; the Church became void, and Monsieur Avidus presented thereto B. and then became a Recusant convict, and died. His Wife presented D. Sir Simon Magus presented E. The university of Cambridg presents Sir Ignoramus: The Bishop elect awards a Jury Patronatus. The Jury findeth all the former matter, and that B. had a former benefice; the Wife was a schismatic, and had contracted with Sir Simon to further his institution. Sir Ignoramus was Egregie Illiteratus. The elect refuseth them all. The Six months' pass, the King presents Doctor Apollo's, The Bishop elect collates Mr. Grace his own chaplain. To which of these the avoidance of this Church appertains for this turn, Quere There be in this case six Patrons. 1. Monsieur Avidus, In jure ux●ris, the greedy patron. 2. Parcella his Wife, In Jure suo proprio, the schismatic. 3. Sir Simon Magus the grantee, a simoniacal patron. 4. The university of C. by the Statute of 3tio Iacobi Regis, of Recusants. 5. The King by the Statute of 23. Eliz. of simony. 6. The Bishop elect by lapse. There be 6 Clarks which stand for this Church. 1. B. The clerk of Monsieur Avidus, double-beneficed. 2. D. The clerk of Parcella, blotted with schism. 3. E. The clerk of Sir Simon Magus, guilty of simony. 4. Sir Ignoramus the illiterate clerk of the Vnivetsity. 5. Doctor Apollo's, the great and learned Divine. 6. The chaplain of the Bishop, fortune's favourite. So that there be twelve persons in the case, which strive for this Church, and every one of their parts hath been taken, either by one Gentleman, or by another, which have argued the same before me. So that now (I am sure) there is some expectation of the Gentlemen Auditors, (which be many) which part I shall take in this case: but before I shall tell you, with whom I mean to take part, I shall expound unto you, the pretty tale of a merry host. For when once I traveled over the River of Trent, and Owse from Lincoln towards York, I lodged at the house of a merry host, and being many of us guests at supper, our host told us of divers men of their Town had been fishing in the River of Trent, where were good store of Salmons, and he asked his guests how many Salmons we thought they had got that day, where-upon some of us said twenty, others fifteen, others ten, & some more, some less, every one according to his own conceit and humour; and when every guest, had said by guess how many Salmons were caught, we were all of us desirous to know of him, how many they had got, who very wittily, and unexpectedly told us, that they had got, never a one. So I may apply this jest to our case. Here be twelve persons in the case pretend right to the avoidance of this Church, and every one of the Gentlemen by great and strange chance, have taken several courses, and also have held with a several party; so that now (I am assured) it is much expected, which of the parties I shall hold to have right to the said avodyance, whereupon (with the merry host) I do hold, that never a one of the parties in the case; hath right to the Church for this time, but that there is a person no named in the cause, hath right to the presentment, whose name I mean to conceal till I grow towards the end of my argument; and therefore now I mean to distinguish and divide my case into these several points, which be as followeth. The points intended in my case be, 1. What a manor is, and whether a manor may be divided, and that two manors may be made of one. 2. Whether the advowson doth pass with the manor granted, or doth remain with the thing ungranted. 3. Because the Advowson lieth in another Town, than where the manor lay, whether it did pass or not, by words Cum Pertin. 4. When Monsieur Avidus did present & die, whether the wi●e should not have her clerk advanced to the benefice, & the rather because the clerk presented was after refused by the Bishops elect. 5. If after that Sir Monsieur Avidus became a recusant convict, whether the presentment be transferred over to the university of Cambridg by the statute of 3 Jacobi & so ought to be conferred upon their clerk Sir Ignoramus, or that he must be put to seek out a benefice in some other place. 6. Whether the Jure Patronatus be well awarded by the Bishop elect or not, and whether the verdict of the Jury nas according to Law or no. 7. If the refusal of the clerks was done upon a just ground or no, and whether notice was necessary or not. 8. If it be such a Simony committed by and between Sir Simon and his clerk, as that thereby the clerk lost his benefice and Sir Simon his presentment hac vice, and whether the King may present by the statute XXXI Eliz, or not. 9 Whether the levesque eslie might present by laps. 10. What is the preson to whom the presentment doth belong if none of the parties aforesaid have right according as I hold And for the Argument of the first point, what a manor is. 1 Point Bracton Plow▪ Co●●. 170. Mr. Bracton saith, quod est Capitale mesuagium ad quod possint diversa pertinere, Master Plowden in Hill and granges case defineth a manor to be quoddam Compositum of demesnes and services: and I do hold that a manor iss a little commonwealth, and is compounded of necessity, as things and causes without the which it cannot be nor have perfect essence. which three things be, 1. Scitum pro habitatione Domini pourson delite & demesnes for his profit. 2. Services to be done by the tenants testifying obedience. 3. And a Court Baron for the execution of justice amongst the tenants. And these be all the things which be of necessity required in the essence of a perfect manor. For if any of these be wanting, there is but an Nuncupative manor as it is termed in Sir Moil Finches case in the Lord Cook's rep: Cook. rep. 6. or rather (as I may more fitly term it) And imaginary manor Nomini & vulgari appellatione & non in re & in opinione Jurisperitorum. There be divers things which be not required, ex rei necessitate to the making of a manor, & yet for divers respects and considerations they be necessary to appertain thereunto, as warrens of Counyes, Chases and parks for the Lord to use for his deletation, villenes regardants to do the Lord's works, piscaries for provision in his House, and advowsons for the advancement of men skilful in Religion and many other things of the like nature, but all these be but instrumental adjuvants and supplements, and are nothing to the essence of a manor, and yet they be necessary to be had therewithal, either for the profit or pleasure they do bring in their several kinds: So that it is holden in our books that by the grant of a manor the S●ite, demesnes, services, and Court Baron do pass, but the Warrens, parks, Chases, Piscaries, and things appendent do not pass to the grantee by the grant of the manor, without the words cum pertin. 8. H. 7. as appeareth in 8. Hen. 7. sol. 4. b. But whether or no an advowson appendent will pass without the words cum pertin. by the grant of the manor; hath been questioned in our books, and Mr. Pa●k. 44. B. 3. 8. H. 7. Perkins▪ title grants fol. and in 44. Edw. 3. fol. 40. and many other books be, that will pass without the words cum pertin: But 8. Hen. 7. aforesaid is to the contrary, and surely I can see no perfect reason wherefore it should pass per-Nomen Manerii without the words cum pertin. more than other appendants and appurtenants will do, considering it hath always the word appendent with it, supposing it to depend and belong to a manor and not to be parcel, and it is also in pleading said Pertinere, unless the old conceit hath wrought the opinion of men to be, that it is parcel of the manor, because Livery and seisin might have been made of it, but the Law in that case being altered, I see no reason but that may stand in equipage and equal terms with a villeine regardant, which will not pass without the words cum pertin. But general opinion doth sway the other way, and therefore I leave it where I found it, and yet I intend to prove hereafter, that (as this case is) these words cum pertin. must be material to pass the advowson or else the word manor will fail. Sir Simon the wicked grantee when he should stand most need of it. It is fit in the handling of this point, to dispute whether a manor may be made at this day or not, & I hold it cannot, the reasons whereof are fit to be set forth and declared. I confess that the Law is taken in 33. H. 8. in brooks Cases, pl. 2 10. & in 35. H. 8. plac. 274. in the same Book and in Sir Moil Finches Case. 33. H. 8. 35. H. 8. Sir Moy●● Finches C●se. That a manor cannot be made at this day, Although a man gives divers parcels of Land, Seperaliter in tail Tenandum of his chief Mansion-house, and some men have been of opinion that manors might have been made until the Statute of Westm. the third of Quia Emplores terrarum did take place, because that Statute took away the Fesans of tenures, jator veray signior, & veray tenants, which must be, and concur where there shall be a manor; but I do hold [for mine own part] that there be two material causes, wherefore a manor cannot be made De novo at this day; The first, because all this realm soon after the conquest theroof by William the Conqueror, was divided into manors: So that all lands, & every Land was put within one manor or other, & therefore the Law was so satisfied in that, as there was an end of making of manors when the cause ceased. 2ly. This word manor implieth in itself, A being time out of memory, which we call prescription, and this appeareth to be so by the said books of 33. H. & 35. H. 8. which are, That a manor must be De tempore cuius memoria hominum non existit in contrarium: 33. and 35▪ H. 8. So that for these two reasons, I am of opinion, That neither a Subject nor the King can make a new manor at this day, Also, for the absurdity, It were unfitting that every petty freeholder by giving several parcels of his Grounds to diverse several persons, should make himself Lord of a manor at this day. But the question and point in my case is not whether one might make a manor de novo at this day, But whether, of one old and perfect manor two manors may be made, and whether one manor may be divided into two or not? It is true that our Law loves entireties, and rejects fraction, Quar union fait unity & fraction fist division, Come garranty per le Ley est entter & pur ceo le party, que ad ceo ne puit, ceo pur son act demesne divider, as appeareth by morices' case in the 6. Rep▪ of the Lord Cook, and by Mr. Litleton; morices' Case. If one have a Rent charge, and purchase parcel of the tennancy or grant part of the Rent to another: All the Rent is extinct in the one case, and the distress is lost in the other; For as the Rent was an entire thing, so was the distress, and Lex non patitur fractiones, So in E. 4. The Office of the chief Prothonotary could not be granted to two, to make two several Officers of them: curls case. Quia sic centum, but as Auditor curls Case in the 11. Rep. Two Persons may be made one Officer, 3. E. 4. Dyer Fol. Sed hoc per statutum: So by 3. E. 4. and Dyer fol. Two Joyn-tennants cannot make partition without a Deed, because it is contrary to the nature of joint-tenancy, to have a division or partition, So that we may collect, that where the Law hath made an union, it dislikes the contrary, and so it may be well held in argumentt that one manor cannot be divided into two: yet, in 9 9 E. 4. E. 4. fol. 17. If the manor of Dale be held of the manor of Sale and Escheat, that is parcel of the manor of Sale; So here is two manors made into one, which proves the one derived out of the other in principio, sed non licet arguere principia, But that is by act in Law. And so is 26. 26. H. 8▪ 4 H. 8. fol. 4. that if a manor descend to two Coparceners, and they do make partition so that either hath demesnes and services, here either of them hath a manor, 12. H. 4. Et cum hoc concordat 12. H. 4▪ For coparceners are by Law compellable to make partition, and then the Law which doth compel the doing of the act doth never work any injury to either party, For that were torcious which cannot be presumed in the Law which in itself is right and justice; 9 E. 4. And although that 9 E. 4. aforesaid seems to sway that two manors may be made one by act in Law, yet by the act of the parties, 2. E. 2. Perkins. I find the Law contrary. As in 2. E. 2. and Mr. Perkins, where a man had two manors and he for ease of his tenants caused all his tenants to come to one manor to do their suit and service, and that for along time, yet that did not make the tenants of the other manor, in right tenants to that manor, they did their suit unto, neither did it make both the said manor one entire manor: 9 E 4. In 9 E. 4 fol. 17. It is said by Catesby that if I have a manor which lieth in Dale, and Sale, and I grant my manor in Dale, the grantee hath a manor, and yet it shall extend but only into Dale; Finches. And in Sir Moil Finches case, it is said for Law, That if I have a manor and grant part of the demesnes and services to I. S. yet by this grant the grantee shall not have a manor. Out of which two books I gather this conceit; That if I have a manor, which doth extend into Dale, and Sale, and there be demesnes and services in either Town, and I grant my manor in Dale, that the grantee hath a manor there, and that which remaineth in Sale, shall be but as things in gross and no manor; Sic e●converso, If I grant all my Lands, Tenements, and Hereditaments in Sale, the grantee shall not have a manor, but the demesnes and services as things in gross, and the manor shall remain with me in Dale. So I may conclude that Sir Simon the grantee, hath a manor in Wrangle, and Jars passed unto him. But now whether the Advowson doth pass to him in some question, 2 point. For things appendent or appurtenant are rather inclinable to remain, 33. H. 8. then to pass by grant; Dyer Fol. 43. 44. E. 3 F●tz. H Impt. Q 137. Forin 33. H. 8. in Dyer fol. 48. and 44. E. 3. Fitzh: quare imp: plac. 137. If one have an advowson appendent to a manor, he may by express words make that appendent to one acre parcel of the manor, but not by these words cum pertinentiis; but if these cases hereafter ensuingbe well noted & weighed, they will make he Law to appear, where these words, Cum pertin., be requisite to be used to make the advowson pass, and where not. The first case is in 6. 1 6. E. 3. E. 3. 44. Fitz. h. title quare imp. pla. 40. Fitz. Q. which is, that if the third part of a manor with th'appurtinances, Impr. 44. be assigned in dower to a Feme, the third part of the Advowson will pass to her without naming of it in expressis verbis &c. 9: E▪ 2, Fitz Bre. 844▪ So is 9 E. 2. Fitzh. Title Breife pla. 844. That if one bring a formedon of the moety of a manor, Cum pertin. he by that shall recover the moety of the Advowson; and the reason thereof (as I conceive) is, because the Feme in the first case, comes in upon the best possession of her Husband, and in her case, and in the case of the Recoveror they both come in upon an ancient right, which is as well to the advowson as to the Land. And these be the reasons (as I conceive) wherefore the part of the Advowson was to come to them by virtue of the said words, Cum pertineniiis, but without the said words, (as I conceive by the said cases) no part of the advowson had come to them. There is one other pretty case in 17. 17. E 3. 2. H. 7. E 3. Fol. 38. and in 2. H. 7. Fol. 4. and 5. If there be three Coparceners of a manor, and of an Advowson appendent, and they make partition of the manor and say nothing of the Advowson, the Advowson remaineth in common undivided as it did before; and the reason (as I conceive) is this, because it stands as a thing indifferent, whether partition be made of it or not, and there is neither profit nor prejudice comes by the not dividing of it, more than if it had been divided in the intendment of the Law: But Master Stamford in his prerogative Fol. 4. Stamfords prerog. 43 43. 8 hath the case thus, That if I. S. be seized of a manor to the which there is an Advowson appendent, and I. S. granteth the moiety of the said manor Cum pertinentijs, that doth not pass the moiety of the Advowson without express mentioning of it; and the reason (as I conceive the case) is, because by way of grant, the part of the Advowson will not pass being the only act of the party, and it will rather remain then pass in a case indifferent, quia potest facilius remanere quam removeri. Yet all these cases differ from my case in words, for that the manor in Law is transferred to Sir Simon the grantee, and that which remained in Monsieur Avidus was but demesnes and services in gross, (if the Law be as I have taken it to be) and then I take the Law to be, that the Advowson will rather pass with the manor, as cum re digniori, then stay with the rest of the Demesnes and Services in gross, being in gradu inferiori. So that, if the rest of the matter of the case ensuing do not hinder it, than (in my opinion) the said Advowson were well transfered to the grantee. But now the point will be, ● Point whither the said Advowson will pass to the grantee, because it lieth not in wrangle and Jars, to the which the grant is stinted, but in L. being another distinct Town per se. And I do think that notwithstanding, the Advowson will pass to the grantee, for that it is an hereditament as well where the manor is whereto it is appendent, as also in the Town where the Church lieth; 2 H, 7, like to the case of 21. H. 7 Fol. 6. land in Sussex is heid of a manor in Essex; it is an hereditament in either County, and the distress taken where the land lieth may be driven into the County where the manor is, as appears by 1. ●. H. 6. 3, 2 Eliz, Dyer▪ 168 H. 6. 3. and 1. Eliz. Dyer Fol. 168. And the Advowson is there more properly where the manor is, than where the Church is, because the Advowson is one thing, and the Church another, and it is moved for a question; Dyer. 32▪ 3 in 15. Eliz, in Dyer Fol. 323. That if a man grant his hereditaments in D. where the vicaridg is which was appendent to the college at Westminster, whither that pass the Advowson; so that the doubt was rather held, whither the Advowson was an hereditament where the Church lay, than where the college was, to the which it was appendent; yet it was there resolved that it did pass, because the view in a writ of right of an Advowson, was there to be had, where the Church was. Dyer. 194▪ And again in Dyer 2. and 3. Eliz. fol. 194. The Bishop of Lincoln, was patron of a prebend in the Cathedral Church of Lincoln, and the body of the prebend lay in the County of Bedford, and it was held that the quare impedit should be brought in the County where the cathedral Church was, and not in the County of Bedford where the corpse of the prebend lay, because the Installation, which is properly recovered in this action, must be in the cathedral Church, where the clerk is to have Locum & Stallum in choro. But in a grant, which soundeth in point of profit, there it is properly an hereditament; also where the profit lieth, that is, where the parsonage is: So that I suppose the Advowson did pass to Sir Simon. But (to make the case more perspicuous) it appears by my case, that although the grant to Sr. Simon be stinted, and tied only to Wrangle & Jars as to the manor, yet the Advowson is at liberty, because it is carried by the words Cum pertinentijs, which come after the Town in the case, and so is not stinted to the Town of Wrangle and Jars, but is left at large. And so my conceit in the case appeareth concerning the grant of the manor, and the Advowson, and therefore I will say no more thereof, but will proceed to the other points of the case. And now the next point of the case is, 4 Point. when the Church did become void, and the Husband presented a clerk thereunto, and died before his clerk was received, whether now the Wife, whose inheritance it was and is, shall or may present her clerk, and have it from the clerk of her Husband, as also from the grantee, and the rather, because that upon the refusal of the husband's Clerk, it stands in case now, as if no presentment at all had been made thereto. A Feme covert in four several cases is in the life time of her husband reputed in the law as a Feme sole. As in 2. 1 2 H 7. H. 7. If she be an executrix, she may pay debts and discharge Legacies. And in 10. H. 7. 20. a. A man being Cestuy que use of Land, 2 10 H 7 devised the same to be sold by the Executrix, and made his Wife Executrix, and adjudged that she might sell the same to her other Husband after the death of her first Husband. And in 31. E. 1 Fitz. Cui in vita. Plac. 31. The Wife of a man abjured might make alienation of her Lands, 3. 3 E 1. or bring her cui in vita. Feme Covert, 4 L●●don, custom. Sole Merchant, by the custom of London. But these cases extend to prove what a Feme covert may have or do in the life-time of her Husband. But my my case tendeth to what a Feme shall have after the death of her Husband, which in his life-time he had power of, and is now the question. In the which I do observe a quadri partite. Diversity. 1. That some things the Wife, after the death of her Husband, without doubt shall have. 2. Some things she cannot have. 3. Other things she shall have, Sub modo. 4. Other things shall go to her or to the husband's Executors, which can first obtain them. 1. And as to the first of these, a Woman after the death of her husband, shall have such bonds and bills for debts as were made to her before coverture, and which be not recovered or received by the husband in his life time, and she shall have such debts and goods remaining unaltered as she brought with her as Executrix to any person: And by 7. H. 6. 1. and 9 H. 6. 52. If she brought a Lease for years with her, 7. H. 6▪ and the husband dyeth without altering the property of it; 9 H. 6. it shall remain to the wife; yet in the life time of the Husband, he had potestatem alienandi, relaxandi, vel aliter disponendi, of, and over all the said matters. 2dly; It is clear that all chattels personal, as ready money, Plate, Jewels, apparel, Horses, Kine and other goods of like nature, which a woman brings with her in marriage, or which she hath given to her during coverture, the absolute property thereof is vested in the Baron, & though he die they shall go to his Executors and Administrators, as appeareth by Fitzh. Nat. br: fol. 69. and many other books. 3dly; If a trespass be made upon he Lands of the Wife, in the life of her Husband, as by breaking of his close, destroying of the Grass and corn, the wife, after the death of her husband, shall have no action for the punishing of these torts, for these were trespasses done to such things as the Baron sole should or might take the profit of during coverture; but such torts, trespasses and injuries which extend to the hurt and damage of the wife's inheritance, as pulling down of her houses, cutting up and destroying the Trees, of these, the wife shall join in the action with her husband in his life time, and shall and may maintain an action thereof, after the death of her husband. And this diversity I collect out of the books of 50. 50. H. 3 E. 3. 13. 43. E. 3. 16. 21. R. 2. title brief, 43. E. 3. 933. But in this part another matter ariseth, which is, 21. R. 2. whether the wife shall have the avoidance, and the presentment to a Church which voideth in the life time of her husband, being her inheritance, and he die before he have presented: And I suppose she shall; and so of a Ward which happeneth in the life time of the husband, by reason of the death of a free-tenant of the wife, for these be chattels real. And yet if the Ward be seized by the husband in his life time, or if he hath presented to the Church before his death, these acts do so vest the same in the husband, as that they do wholly deprive the wife thereof. I grant that the husband & wife may join in the presentment, or join in the quare impedit, which if they do so, then that will reserve the same unto the wife after the death of the husband. And I find by 15. E. 4. 9 that they may join in the quare impedit, or the Baron may, if he will, bring it alone; but in our case, because the Baron hath presented to the Church, sole without his wife, that thereby such an interest of the present avoidance is vested in the Baron; as, though the Bishop after refuse his clerk, yet the presentment shall go to his Executors, and not to the wife; And herewithal I intend to dismiss Mistress Parcella, and her clerk, from the preferment of this Church, at this time. 4thly But to make good the fourth part of my diversity, which between the Executors of the Husband and the wife, is a plain Capiat qui capere possit, I find by 3. H. 3. H. 6. 6. 37. and 43. E. 3. 10. That if an Obligation be made to the Baron and feme, 43. E, 3. and the Baron dyeth, that the Executors or the wife, which may get the Obligation, may sue it, and recover the money. And herewithal I end these distinctions. And will now proceed to the title of the University of Cambridge, ●. Point. and of their inglorious clerk Sir Ignoramus, which is the fifth point of my case. No inn of Court or Chancery-man need wonder, 〈…〉 fore I styled the Universities clerk, by the name of Sir Ignoramus; For it is to be conceived that he had commenced bachelor of Art in ignorance; and the late skirmish he made with Ignoramus of the inns of Court (being both of one blood and kindred) may put us all in perfect remembrance of him; yet both these kinsmen in ignorance wanted not their favouring friends to help the one of them into practice, and the other of them to a Benefice, when many a Learned and a studious Gentleman (wanting help of friends) might sit without both: So much is this froward age, we live in, to be condemned, the more we see ignorance preferred before learning and virtuous qualities; and dull-pated Jobber-noles unworthily advanced to places of profit and dignity, when many a learned Muse sits in his Study, destitute of either; Herein I taxed only the Time of partiality, that preferred an ignorant ass, before a Learned Schoolman, a fault too common in the University, and not without blame in the Inns of Court and Chancery. But seeing we have Sir Ignoramus amongst us in the Schools of Law, let us now see if we can toss him like a dog in a blanket, and make him vomit out his nonsense, and rid him of his ignorance; But shall we strive with an impossibility? Quia ignorantia sua hoeret in nomine, in capite, & in cute? Yes, and thrust him into the said Litigious Rectory; a fit chaplain for such a Church; Besides, it may well be found out in the case, that I intended not to spend much labour to reform Sir Ignoramus, (counting the labour as endless as the maids in the Strand, which endeavoured by washing the blackamoor, to make him white:) But to vent our some passion against Sir Simon Magus for his Simony, and one that was a magician from his infancy; I mean not that person named in the 8th of the Acts of the Apostles, for he offered to give money to buy the bestowing of the Holy Ghost; ●his refused not to take money to bestow a Benefice, so they were of kin, this was a Knight without living he was a Knave without grace. For Monsieur Avidus, I set down his name so, because it best suited to his condition; for he was so far from covetousness, as that he sold the Advowson to Sir Simon whom he knew was a person likely to give most money for it, and yet according to the text of Fallere fallentem non est fraus, h cold have found in his heart to have cunningly defeated him of it, forgetting the old reperte, quod fallere quenquam non est laus. The Seditious schismatic woman, though her effeminacy should have innated in her mildness, peace and concord, yet having lain with her old cankered husband, he engrafted in her seditious frowardness, seeming religious forwards, being irreligious backwards in all her actions; for now adays women grow so seeming religious as that they have found a back way to Heaven, which men never knew of; well, let her trot thither as fast as she can, I mean to set both her and her clerk besides the Cushion, lest she should bring as troublesome a clerk to the Church, as she herself is a cumbersome huswife in her House. And seeing I had framed my case upon such a confused Chaos of non-conformities, I thought Master Plurality, the engrossing Beneficer, should be one of the actors in this comudy; he is a person compounded out of many particularities into a qualification dispensation, and nonresidence be the only liberal sciences in his study. Ever when he talks of the Law he exagainst claims against the statute of 21 H 8. 21 H 8. which opposeth pluralities unless sometims he casts outsome foe his foam prohibitions, which be Fulmina Jovis or rather Fulmina Regis to repress the greedy appetites of such of the coveting prelacy as cannot content themselves with their old duties and customs. But let all this confused Chaos of non ordered persons sleep a while and dream of some metamorphosis, to change them from their several Leprosies, while I pass into the argument of the fifth point of my case, and that is, whether the University of Cambridge have title to the Church, K. J●● to present hac vice, by the Statute of 3. Ia. R. For if the Law prove so, than it will make well for their clerk Sir Ignoramus (according to the old Proverb) The more fool the better luck. But I am of opinion that the University hath no right by the said Statute; for it doth differ much from the university of Oxford, C 〈…〉 in my Lord cook's Xth rep: For there in that case although the grant of the next avoidance was made before the conviction of the Grauntor. Yet it was after such time as he became a Recusant, and also the church became void after the conviction. But in my case the Church became void before the Grauntor became a Recusant, when he stood rectus in Ecclesia, and he presented his clerk to the said Church when he stood clear, before he was spott●d with any irreligious quality, and after presentment; the clerk had that interest in the Church against his Patron, that the Patron could not revoke or repeal his presentation, as it appear● the cases of 12. Elizabeth, Dyer: fol. 292. and 18. Eliz. 348. and Fitz. Nat. br. fol. 34. and some other books; And although the Patron, after became a Recusant, and was convict, yet that doth not vitiate the presentment which he made in pura vita ●●●a; For if a good Protestant grant the next avoidance to a Church, and after become a Recusant, yet that shall not avoid the grantee of his Interest which was made, when the Grauntors was clear and void of that leprosy; contrary it is, if the Grauntor were a Recusant, when he made the grant (though he was not convicted till after) for after the conviction the forfeiture of the statute had a reach back to the Commencement of his offence, which was, when he first became a Recusant: But now I shall put you a short case, which falls between the Lord cook's case and mine, and that is; If one become a Recusant, and then grant the next avoidance to a Church, and after is indicted for a Recusant, but the indictment extends in time after the grant of the avoidance, I might make some question whether the grant of the avoidance should be avoided; And I think it shall, and the University should have the presentment in that case: but the forfeiture of xxl. a month were clear (in the case) out of the Statute; For admitting he were a Recusant four months, and he is indicted but for the 3 last months, the King cannot not have xxl. Le case de Sir Chris. Hatton. for the fourth month not found in the indictment▪ The case of Sir Christopher Hatton might be strongly urged against me, which is, that Sir Christopher became Officer to Queen Elizabeth in Anno xx. of her reign, (and he owed nothing) quo anno, he purchased land, and then conveyed the land away, bona fide, when he stood clear and unindebted; and long after, in the 32. year of Queen Elizabeth, he became indebted, and not before, yet that land or Lease conveyed away, stood chargeable with the debt; which case I grant, because he became accountant when he first became Officer; and although the grew not indebted till after, yet the cause the Land was bound, was when he first became an Officer; but if, before he became an Officer, he had passed away any Lands, or made away any Leases, those Lands or Leases should not be charged; And so is the Law and Reason in my case, that because the Church fell void when the Patron was not any Recusant, and the presentment was then also made, that is the cause the Statute never could take hold of this presentment: but if (as in the Lord cook's said case) he had been a Recusant when the Church became first void, or before he had presented, than (I think) it would have vested in the University, and Sir Ignoramus had had a fair pull at it. But seeing the presentment which Monsieur Avidus made, saved the Church for the time: yet (considering the clerk was after refused by the elect) whether now the University shall have the presentment or not, is the question. If the Patron Recusant could have repealed his presentment, than the question will arise, whether the same shall be trasferred over to the University by the said Statute of tertio Iacobi or not. And as I have formerly said, so I hold still that the Patron could not repeal or call back his presentation; For it is more than a mere power that he gives to the clerk; for it is an interest for his preferment, especially being made to the party self; I grant the case of 1. E. 5. fol. 〈…〉. 〈…〉 where one delivers money to I. S. to pay to I. D. Or where I deliver a horse to I. S. to deliver to I. D. The money in the one case, and the horse in the other, may be countermanded before they be paid, or delivered over to the party, because the bailiff is but my servant in these cases: Bat put the case a little further, that I give a horse to I. S. to the use of I. D. or I enter into an obligation to the use of another, here, because I make the Byaliffe a party, I cannot in these cases make any countermand of the things delivered: So, because (in the principal case in question) the clerk hath a kind of interest in the Church by the presentation; In that respect th●refore it cannot be repealed by the Patron: Yet (on the otherside) I am of opinion, that if I have the nomination of a clerk, and I. S. the presentation of him, that I may repeal my nomination, for I. S. is (in this case) but merely my servant to present my clerk to the Bishop: And I am of opinion also, that if the Patron Monsieur Avidus could have recalled his presentation, that then that power had been transferred over to the University by the said Statute; In the argument of which said point, I may aptly put the case of Sir Francis Englefeild, The case of Sir Fra Englefield. in cooks 7. Rep. where not only the condition, but also the performance of it was transferred over by Act of Parliament to the King, because the party might have taken advantage and benefit of it himself, and therefore the same advantage by the Statute was transferred over to the King: wherein also I take a difference between that case, F. ●. 8. and the case in Fitz. N. Br. fol. ●● 8. I. That an assignee cannot have a writ of admeasurement of dower, where the woman dowager had more assigned to her in dower than she ought to have, but the heir the assignor might himself so, if an Infant alien and die without heir, the Lord by escheat cannot enter, for the Law doth not transfer such titles over, yet an assignee in Law may take advantage of a condition or covenant; 8 Eliz Dyer 252. Quia fortior & potentior est dispositio legis quam hominis: But the case in 8. Eliz. in Dyer, fol. 252. comes fittest to this purpose, which is that there was a donative chantry, and the Priest made a Lease for years, 1 E. 6. and the Patron in tail confirmed the same, and after, the chantry was given to the King by 1. E. 6. of Chauntries; And whether the King might avoid the said Lease, and that such title of avoiding the same be transferred over to the King by the said Statute of Chaunteries or not, was the point: And it was holden that it was; but because there was a Fine with Proclamation after shown forth, which did bar the said entail, It therefore was holden that the King was barred, as the issue of the Tenant in tail, the confirmer, was: which comes directly to my purpose; For 〈…〉 Statute which is the act of the whole Realm, may and will set the party, to whom the thing is assigned, in as good plight as the party was in from whom the same was taken: So in our case, when as Monsieur Avidus had presented to the Church, and that he could not repeal his presentation, but that he was bound thereby, The revocation and repeal of this presentation could never by the act of 3. the King, be transferred over to the University, because the Act of Parliament doth settle the same no otherwise in them than it was in the party self, from whom it was taken▪ And so the presentment remaining in force till the death of Monsieur Avidus the Recusant, when the Elect after refused the person presented, because, as then, the Recusant was dead, It could not vest in the University of Cambridge, but rather in the Executors of Monsieur Avidus. And so, for these causes, I take it, that the University have no right to the said avoidance, and that they could not confer the same upon their clerk, Sir Ignoramus, if so be there had been no defect in the clerk himself, which after shall be found to be manifest against him, notwithstanding it were admitted that the University had a good title. And so I will now pass over to the other points in the case which I intend to handle, as shortly as I can. The next thing to be handled in my case is, 6. Point. whether the awarding of the Iure patronatus be well or not, and what nature the same is of, and what points be enquirable thereby; and what manner of men the Jurors should be which are to be used therein. In the handling whereof I must use practice with Law, and where one serves me not, I shall make use of the other. A jure patronatus is properly to be awarded, where the Church is litigious between divers Patrons, and the Bishop stands in doubt which of them hath the true right, and so cannot tell (without some peril to himself) which of their Clarks he should receive and admit of: 22 H. 6. Then he may (to save himself free from being a disturber) award a Commission of a jure patronatus; 33 H. 6 And I do find in our books, 32 H. 6 as in 22. 34 H. 6 H. 6. 44. and 33. H. 6. fol. 12. and 32. and 34. H. 6. That a Church may be litigious Before the awarding of the jure patronatus. As also after the awarding thereof And it may be made litigious by the awarding thereof. 1. Before, as where diverse and sundry Clarks be presented by diverse and several Patrons (as it is in my case) there the Church is litigious. 2. So is it, if two Commissions be awarded at the suit of two several Patrons, and in the one it is found for the one party, and in the other for the other party, here the Church resteth litigious by this uncertain verdict, and by these several presentments. 3. Also, if in a jure patronatus, it be found for one, and before the Bishop be requested by the clerk for whom it is found to admit him, another doth present, here the Church is litigious after the jure patronatus awarded. And I collect by the book of 21. H. 6. 44. That if I. S. present his clerk to the Bishop, that if the Bishop doubt of his title, he may award a Commission of jure patronatus, notwithstanding that, not any other Patron doth present; And this I collect by the said books, for that it is there said, That if two Patrons present severally, the Bishop shall award two Commissions of jure patronatus, that is, one for either party; And it is said in the said books, that the Bishop is bound to admit the clerk of him, for whom it is found; If the clerk so require him, which he must do or otherwise the Bishop is not bound to admit him, but may suffer the laps to incur and take advantage of it: But howsoever, I hold it plainly, the Church in my case was litigious, and a jure patronatus was to be awarded: Now then to declare the nature of a jure patronatus, and the points of it, come justly into our consideration. It is therefore to be understood that a jure patronatus, is a Commission awarded by the Bishop, and under his seal directed to some expert in the civil Law to summon a Jury, to inquire of these five points. The points enquiorable in a jure patronatus be 1. Si Ecclesiam vacat & quomodo vacavit. 2. Quis Patronus ultime presentavit. 3. Quis est verus & indubitatus Patronus. 4. Quis nunc debet presentare ad Ecclesiam nunc vacantem. 5. De idonitate personarum presentat. And the Jurors which are to be sworn upon this, are the one half of them Clergy men, Ministers: and the other half be Lay men: And a Minister must be the Foreman: And so they are to be sworn alternatim, One Minister, and then a layman, and ●o till twelve or above be sworn on the Jury, for (being but an inquest of Office) above twelve may be of the Jury. I have seen sixteen of the Jury, viz. eight clerks, and eight laymen; But, as they were divided in their habit and profession, so they were divided in their opinions for their verdict, Clerici contra La●cos, & Laici contra ●leric●s: I do find in this case that the verdict which finds the special matter is superius patronatus, which is effectual in that point, but whether this special matter leave it so at large, 〈…〉 as that the Church remain litigious still or no, is a question of some moment: It is clear by 21. 21 H. 6▪ H. 6. That if two commissions be awarded, and the one finds for the one party, and the other for the other party, here the Church remains litigious still, so that the Bishop may well refuse them both: but before the jure patronatus awarded, if it had been his chance to have taken the wrong clerk, and have refused the other which had right the Bishop had then been a disturber, quod nota pro different. But here is a special verdict which in judgement of the Law, is found for him that hath right; Then, whether the Bishop (at his peril) ought to take notice of the Law in this case, I hold it very disputable: But yet, because he is Judge in that case, I do think it is at his peril to know the Law, and to present a right person upon the penalty of being a disturber: And I have observed it in all inquiries of office, a verdict at large might be given by the Jury super veritatem facti, as in a Mandamus, & Diem clausit extremum, and so in this case; For, here be no issues joined as in other trials be, for there the verdict must be according to the point of the issue; but in commissions awarded ex officio, the enquiry may be, and aught to be, as large and special as the commission is. But whether the particular finding of the disabilities of the clerks by the Jury, be within the said five points of the commission, is now to be handled; And therefore first concerning the clerk of Monsieur Avidus, where the Jury finds he had a former Benefice, whether that be a sufficient cause to disable the clerk, 14 H. 7 or not, I find by 14 H. 7. fol. 28. that it is no sufficient cause for the Bishop to refuse the clerk because he had a former Benefice, Holland's case. Co. 4. 10. E. 3. yet it appears in Holland's case, and in 10. E. 3. 1. parnings' opinion, that by the acceptance of a second Benefice the clerk may be deprived of both by the spiritual Law: And then in Sp●cots case in signior cooks 5. Sp●cots case. rep. fol. 58. It was resolved, that in all cases which be sufficient causes to deprive a clerk, they be sufficient for, the Bishop to refuse the clerk; So that ex consequenti, It follows, that if it be a sufficient cause of deprivation, because the clerk had a former Benefice, then by Specot's case, it a good cause of refusal: And this is within the 5th Article de idonitate personarum, inquiorable by the said commission: But for my own opinion, if that Monsieur Avidus had right to the presentment, I should have held the having of a former Benefice, to be a sufficient cause to refuse his clerk, because (at the least) the clerk is deprivable for it, for the last Benefice, if not for the first also and even as one which hath a wife and taketh a second, Fitzh: N. b. fol. 34. l. he is by the Law to be divorced from them. I do not in any sort bear with pluralities, but because it is against the Law civil; I therefore would gladly be resolved by some honest, single-beneficed Divine, whether it be not in some sort against the Law of God, and then I should more resolutely have delivered my opinion against him. But to pass this matter over, I must now enter into the causes, which be, and be not, in Law sufficient to refuse a clerk presented. If a clerk be criminosus, then he may be refused, as if he be prejured; 38. E. 3. 3. as it appears in 38. E. 3. 3. although he were not convict of the offence; quod dubito, because in that case, he confessed himself to be perjured, before the Bishop upon his examination; which was in effect a conviction, being in a cause ecclesiastical, wherein the Bishop was Judge. Occasion of a man is a cause to refuse a clerk, for that is crimen by the same book, Holland's case. by Holland's case, in the fourth Rep. of signior Cook. Bastardy, Villeinage and Nonage, be causes to refuse a clerk, and herewithal agreeth▪ 5. H. 7. 19 5. H. 7. Kebl●, in Specot's case aforesaid. If the presented be a Schhismatick, it is a sufficient cause to refuse the clerk; And I have observed that the difference between a schismatic, and an heretic, is this, that a schismatic differs from us in manner, the heretic in matter of Religion. To refuse an heretic or a papistical clerk in my opinion be sufficient causes; For, for these offences the clerk is deprivable. So is nonability a sufficient cause, 5. R. 2. and to be illiterate by 5. R. 2. and Specots case: For the Statute of Articuli Cleri▪ cap. 13. is, que idonitatem presentati, ad beneficium pertinet ad judicem Ecclesiasticum ut propter defectum scientie & aliarum causarum rationabilium. So that Sir Ignoramus is disabled by Act of Parliament, and he being found by a Jury of clarks to be egregie illiteratus, I shall so hold him still till he shall improve his Learning better: 〈◊〉 case 114. In little Broke fol. 114. I find a case, that where a man is attaint of heresy, or that he is a Jew or Turk, he cannot have his clergy, wherein I do conclude, that these be sufficient causes to refuse a clerk: But I do not mean to include Sir Ignoramus in that case, to make it questionable whether he could have his clergy, because (as I have heard) the grand Inquest already at Newgate, did in favorem inscientie sue, grant him the benefit of his name, and endorsed upon the indictment Ignoramus, and so was discharged. But, 9 Eliz. to proceed, in 9 Eliz. in Dyer, a Bishop refused a clerk, for that he was a haunter of taverns, and unlawful games: and was taken for a disturber; yet I shall never commend that Patron that shall make choice of a drunken clerk. I hold it a sufficient cause to refuse a clerk, which hath committed Simony, 8 Acts. because the Apostles Peter and Paul pronounced sentence, and in the 8th of Acts against that offence, and the offender therein. So that my opinion concerning B. and Sir Ignoramus two of the conformed clarks doth appear. But now the matter of greater difficulty is, whether the offence in the woman patroness, because she was a schismatic were a good cause to refuse her clerk or not For although she was to be censured an ill member of the church, yet if her clerk were a competent person as he was (for aught that appeareth to the contrary) in my case, I then do think, that the Bishop could in no sort justly refuse him: But I am of opinion, that in some cases the offence of the Patron shall be a cause sufficient to refuse his clerk, 15 H. 7. as in 15. H. 7. where the Bishop refused the clerk, because the Patron was excommunicate, and had so remained forty days: For there (by the Law) no man under pain of Excommunication could communicate with him: But I am of opinion that in cases where the Patron is disabled in the point of Patronage, 3 H. 5. 3. that there his clerk may be refused; As, if he be outlawed, 14 H. 6. 56 for then the King ought to have the Presentment. So where three joint-tenants be, and they vary in presentment, here the parties have not presented according to their interest, and therefore the Bishop may refuse their clerks. So (I take it) if I. S. present, and it appear to the Bishop that he have no right to the presentment; The Bishop may refuse his clerk; And because this kind of Learning comes oft in practice, and yet is difficult; I shall therefore set down two or three cases to instruct a Bishop now and then how to get a laps by a strain of wit; For I am of opinion (at this time) that if the presenter have no right, the Bishop may refuse his clerk, and in a quare impedit he may well excuse himself, and may (in some sort) plead in chief to the right of the patronage: And this opinion I do both gather and maintain by the cases ensuing, and that is by 5. H. 7. fol. 34. where in a quare impedit, brought against the Bishop, 5. H. 7. the plaintiff declared that he was seized of the advowson in Fee, and presented on E. who was received, instituted and inducted: and that after, the church became void by the death of E. and remained void by the space of 6. months, and the defendant collated C. who was inducted thereunto, and after, the said church became void by the death of C. And that therefore now it appertains to him to present, and the defendant did disturb him: The defendant pleaded, that one I. S. did present the said C. unto him as ordinary, and he did admit him, and he was instituted and inducted into the church at the presentment of the same, I. S. and traversed, Absque hoc, that C. was collated by him. And this plea by the better opinion of the book was good, and yet it doth entitle I. S. by the presentment which was by disturbance, and did disable the plaintiff thereby: And thus the plaintiff is disabled by the plea of the Bishop in point of right. And, 22. H. 6. In 22. H. 6 fol. 28. Sir John denham's case, which is, that one brought a Quare imp. against the Bishop and one R. canon of St. Needs and declared that W. his Father was seized in fee of the manor of Hatland, to the which the advowson of the Abbathy of St. Needs was appendent, and that the abbey▪ voided by the death of A. and his Father presented B. who was admitted, instituted and inducted at his presentation, and that his Father died, whereby the manor and advowson descended to the plaintiff as next heir, and that the Abbey became void by the death of B. and so it belongs to him to present, and he presented his covenable clerk to the Bishop defendant, and he refused him. The Bishop pleaded that the abbey of Saint Needs, time out of memory, had been a House of Abbot Prior and covent, and that the Prior and covent have used, when the Abbey became void, to elect one to be Abbot, and to present him to the Bishop, and if he found him a covenable clerk▪ then he received him, and caused him to be installed: And he said, that the Abbey became void, and the Prior and Covent did elect the other defendant and presented him to the Defendant the Bishop, and he found him covenable, by reason whereof, he admitted of him and caused him to be installed, and so claimeth nothing but as Ordinary: and by the direction of the Court he traversed the appendancy, which is an excellent case for my purpose: For hereby it appears that the Bishop pleaded an Issuable plea to the Droit of the church. And there is another case in 13. 13. H. 7. H. 7. fol the 18. where the Lord Hastings, and the Lady Mary his Wife, brought a quare Imp. against Sir Walter Hungerford, and declared how Mompesson and others were seized of the advowson in gross to the use of the Plaintiffs, and they being so thereof seized, granted the Adowson to R. who regraunted the same to them, and shows a presentment, and that the church became void &c. now appertaineth for them to present, and they presented their clerk, And the Bishop one of the Defendants, refused to rereceive him: The patron, the Bishop, and the Incumbent, joined in a plea, and pleaded and set forth, that Mompesson, and his other cofeoffees were, and stood seized of the Advowson to the use of Sir Walter Hungerford one of the Defendants, and of his heirs Males of his body, and he presented, Absque hoc, that the said Mompesson and other his cofeoffees were seized to the use of the Plaintiffs: which Plea (no doubt) was a good Plea for the Patron, and also for the inducted incumbent, since the statute of 25. 25. E. 3 E. 3. Cap. 7. And I suppose that the Ordinary hath such an interest in the Church, as that he may also plead thereunto, For, (as it appears) the Patron and Ordinary in the vacancy may actually charge the church, with a perpetual rent-charg, but not with annuity (as I take it.) And althoughsome have held before me, that he shall be but in case as a dissei for which can plead no plea to the tenancy, 26. Ass. as 26. Assis. 49. and 35 H. 35. H. 6. 6. 13. is The reason there is, because he is taken in the Law to have no interest in the tennancy: but an Ordinary surely hath some interest in the Church, considering he and the Patron may charge the Church in the time of Uacation, and he shall set clerk therein if a lapss come: yet I am of opinion, that if I. S. disseise I. D. of a manor, to the which the Advowson of L. is belonging, that if I. S. present to that Church, the Bishop cannot (upon penalty to be taken a disturber) refuse the clerk of I. S. unless that I D. do also present. for than he ought to receive his clerk; and my reason is, because I. S. had right to the Advowson against all others but against the Disseisee, by reason of the possession, which is sufficient to close the hands of the Ordinary. These cases I have put purposely to maintain the title of the Bishop, because I hold, that the refusal of the clerk of the Feme schismatic, is not any sufficient cause, but that she failed in point of right, which by these cases, is proved, that, the Ordinary might plead and justify against her. But, to proceed a little further in this learning, It is requisite for me to declare, how and in what manner these causes of refusals ought to be shown by the Bishop, and how and before whom they shall be tried, Specots' casc. It is plain by Specotts case aforesaid, that, for the Bishop to excuse himself in a quare imp: for refusing of a clerk, quia fuit Schismaticus inveteratus was no sufficient cause, but he ought to have shown in q' o & quomodo: 9 Eliz Dyer. and so by 9 of Eliz. in Dyer aforesaid, that the clerk was Criminosus, without showing certainly, in what, was insufficiently pleaded, and the reason is, because the Patron may take issue thereupon: and if it be in cases of schism, Heresy, or other offences ecclesiastical, the issue shall be tried by the ArchBishop of the Province, And this I have observed out of 39 39 E. 3. E 3. 1. and 40. E. 3. 20. Where, a clerk was refused by reason of nonability and tried by the garden of the spiritualities seed vacant Archiep: 40. E 3● 20. But if the clerk had been dead it should have been tried per patriam: 5. ●. 2. and by 5. ●. 2. A clerk was deprived by sentence given at Rome, because he was a miscreant, and that was tried per patriam, because the judges could not write to any to try that issue: So, Outlawry, death of a man, and perjury, in a temporal cause shall be tried by Jury, but perjury in an ecclesiastical cause shall be tried by the Bishop, 38. E. 3 ut constat, per 38. E. 3. 3. Let these cases suffice for this matter, because I would not be more tedious than my case doth afford me occasion. Yet because, some of the Gentlemen of the Bench, and especially those of Lincolns-inn, have argued much against the Bishop's Title, because he refused B. the clerk of Monsieur Avidus, by reason he had a former benefice, & Sir Ignoramus because he was illiterate; and gave no notice thereof to the Patrons which presented them: But I shall give them a full answer thereunto; which is, First by the book of That if the Bishop refuse a clerk for nonability of literature, if the Patron be a spiritual man which presented him, the Bishop need not to give him notice thereof: contrary; if the Patron thereof be a Layman: And the university is a learned Corporation which can of themselves, as well take notice of the learning of the clerk, as of his person, which I take to be a sufficient answer to Sir Ignoramus and his Patron: And the next reason shall extend to all the Clarks and Patrons also in my case (except the King and his clerk) and that I ground upon the said books of 22: 22. H. 6. H. 6. 8. 34. H. 6. which is, that where divers persons do present severally their Clarks to the Bishop, 34. H. 6. and he awardeth a Iure patronatus which is not determined, but by reason thereof, the 6. months' pass, (as in our case,) yet in a quare impedit, it shall be a sufficient plea, for him, to plead that the Church was litigious by reason of the several clarks presented and so remained until the 6 months were passed, whereby he collated his clerk: And this shall be a good plea without setting forth the proceedings in the Iure patronatus, and the spesciall verdict thereupon given. So that I hope those Gentlemen which have argued for Monsieur plurality, and for Sir Ignoramus, will rest satisfied with this answer, till I come near the end of my case, and then I hope I shall more fully resolve them, that the Law is against their clients, howsoever the exceptions were wittily and pertinently taken; and so, now I intend to proceed to the handling of the 8 point of my case. The eight point of my case, 8 Point. is, whether the contract which E. made with Sir Simon Magus▪ to further his institution be such a simony as shall cause E. if he had come in upon a good title to forfeit the Church as also to cause the said Sir Simon to lose his, presentation hac vice, and to forfeit the same to the crown or not, 31. Eliz. which is grounded upon the Statute of 31. Eliz. But this Statute seemeth plainly to distinguish betwixt Simony given; or contracted for, for and concerning the presentment and where it is concerning the Institution and Induction, for where the Patron contracteth to have or take for the presentation, he loseth his presentment, and it is forfeit to the crown: But if the clerk contract, or give any thing for to further his Institution, he doth only lose the preferment of that Church, and the Patron is to have the presentation, and doth not forfeit it for the abuse of his clerk: I grant, that simonical contracts are detestable, before God and man, yet being so penal an offence; It is fit it should be well proved, ere the offendor be punished: And I cannot perceive but that the presentment stood clear without any touch of Simony. And although Sir Simon was particeps criminis, yet the crimen was only in the contracting for, and concerning the Institution and not concerning the presentation, and if it were agreed colourably before the presentation that Sir Simon should have nor take any thing for the presentation, but only to further the Institution, than I should take this concerning a Simony against Sir Simon upon this statute, for many of the Gentlemen which argued the case, doubted, Sir Simon intended to defraud the Statute, fearing (because he was a branch sprung from so bad a Tree) he could bring forth no better fruit. Therefore I will defend his act no further, but judging upon matters no otherwise than I see, I cannot find any just cause, in Law to entitle the King to the presentation, nor to excuse Sir Simon of his unlawful contract concerning the institution, whereby the clerk did forfeit his preferment to the benefice; If so be that the party, with whom the clerk did contract, had had power in the Institution as Sir Simon had not, yet to further it with the Archdeacon may be Simony. But now all this serveth well for the Eslie, 9 Point. to maintain his title by the lapse: for seeing the Advowson passed from the Grauntor, by his grant, and then the university could not have it by his recusancy, nor the woman, because if it had not passed, yet it was settled in the Husband, and if it were well transferred away by him, than it vested in the grantee, and that the multitude of presentments made the Church litigious, even against him that had the very right; and that there was no such simony in the case as might forfeit the presentment to the King, then were the Bishop's title, by lapse the best; but yet because I intend to bid them all to oneself banquet, I mean they shall all taste of the like cheer; And therefore I plainly do hold, the Eslie, which is the Bishop Elect, to have no right nor title to collate by lapse; and the reason is, because he is not sacred, and so wants that perfection which a Bishop ought to have, that is, to collate to a Benefice. And in the handling of this point, I must ground my argument upon the statute of 25. H. 8. cap 20. Whereby I do gather that five things are requisite to the perfection of a Bishop. 1. The first is a congee de Eslier, directed from the King to the Dean and Chapter by Letters patents, giving them leave thereby, to proceed to the Election of a Bishop. 2ly, The Election of the deane and chapter, which is pro forma tantum, for they are directed, whom they must choose. 3ly Then The certifying of their Election, and the mandate directed to the Archbishop and two other Bishops, to proceed to consecration. 4ly The consecration, by the which he received the pall, Benediction, and Church ceremonies, which enabled him in rebus spirituabitus, and made him capable thereof. 5ly Instaltation and inthronization, by the which he was entitled to the temporalties of his bishopric, and thereby was enabled to sue the same out of the King's hands; by the which it appeareth, that, till consecration, he is not capable of the spiritualities, and then, Ex consequenti, it follows, that all the said patrons were mistaken, to present their clarks to the wrong Ordinary; and the Bishop Elect was somewhat too hasty to take upon him power in those cases, to play the part of a perfect Ordinary before he was a consecrated Bishop. And for the case put in Fitzh. F. N. B. 2. Nat. Br. Fol. 2. E. which is, That if in temps of vacation, and after such time as there is a Bishop elect, a man have cause to sue a writ of right, he may have it directed to the bailiffs of the elect Bishop; which I do not think to be law, under favour of that Book, because, till he be installed, he hath no possession of his temporalties, nor then neither till he have sued the same out of the King's hands, as by common experience is manifest. And the suing of a writ of right concerns his temporal estate, and it appears in Fitzh. Nat. Br. Fol. 169 that till a Bishop be sacred he cannot have a writ, F. N. B. 169. De restitutione temporalium. And therefore before then I suppose he hath not any power in his temporalities, nor in the spiritualities till his consecration be finished. And by 21 E. 21. E. 3. 3. 39 and 40. That from the consecration the Bishop shall have his temporalities and not before, and from thence he shall in writs and commissions be named Bishop; and before he shall only be named the Elect Bishop, Notwithstanding, In case in Co. 8. Trollopps case 69. it is said, that a Bishop Elect, before he be sacred, may certify an excommunication; which may be law, because the certification is only a ministerial act; but I suppose he cannot pronounce sentence of excommunication. which is a judicial act: For therein it is requisite, he should be a Bishop sacred though not inthorized. So that now that I have destroyed the title of Monsieur Avidus because I hold the advowson passed away to the grantee Sir Simon Magus; and hereby also the pretended title of the University falls to the ground, because the grant was made before the Grauntor became a Recusant, when he stood Rectus in Ecclesia, and the title of the Feme was not sufficient to vest this avoidance in her, because it fell in the life time of her husband and so was lawfully passed away to the grantee, and the title of the King fails in point of Simony, and that Sir Simon presented to a wrong person, because the Bishop was not sacred, and if it were made to a right Bishop, yet the church was litigious and so remained 6 months and that the lapse could not appertain to the Bishop elect, for the causes and reasons aforesaid. Therefore, it appears, that not any of the persons in the case have right to the said presentment: Then, 10 point. Now for the conclusion of my last point; It comes most fitly to be shown, what person hath the best right thereunto. And that (I hold) is the garden of the spiritualities, which most commonly is the Dean and Chapter, during the vacancy of the bishopric, because the Bishop is to present by Lapss, ratione Spiritualium. But, If a Bishop have an Advowson belonging to a manor, or to his temporalities, which voideth during the vacancy, there the King shall have the presentation, for that comes to him, ratione temporalium, as it appeareth in Fitzh Nat. Br. fol. 34. K. F. N. B. 34. 44. E. 3. 3. 50. E. 3. 25. which be in the King's hands. But in 31 H. 44. E. 3. 3. fol. 16, during the vacancy of a Bishop; the garden of the spiritualities shall have the spiritualities, 50. E. 3. 25 and he shall have the lapse to whom the presentment ought to be made, 〈…〉 H. 6. 10 which is, The garden of the spiritualties. And so I do conclude against all the said parties, and am of opinion that the garden of the spiritualities ought to have the presentment of the Church, hac vice, by the lapse. Finis, Fustis, Funis, Sir Jgnoramus.